the action was dismissed it ceased to have any efficacy or binding force. To illustrate: An appearance and answer operates as a waiver of service of summons, but it would hardly be contended that upon a dismissal of the cause, and institution of another action for the same cause, the waiver in the first action excused service of summons in the second.

The fourth point made for reversal does not call for extended comment. It is based upon section 1496, Code Civ. Proc., which provides that when a claim is rejected by the executor, administrator, or judge of the superior court, the holder must bring suit in the proper court against the administrator, etc., within three months after its rejection, or it shall be barred. The objection is based upon the allegation of presentation contained in the complaint in the first suit, but, as the court found no such presentation was made, the statute did not begin to run until the presentation of the claim made a few days before this action was brought. We recommend that the judgment and order be affirmed.

We concur: HAYNES, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(116 Cal. 682)

PEOPLE v. ARNOLD. (Supreme Court of California.

(Cr. 234.) May 8, 1897.) ASSAULT-EVIDENCE-IMPEACHING DEFENDANT

-INSTRUCTIONS.

1. Evidence that defendant was informed that his wife was running with other men for illicit purposes, and merely surmised that she was leaving home for some such purpose when he intercepted her, and, on her refusal to turn back, assaulted her, was inadmissible to show want of malice, there being no claim that he was acting under the influence of passion aroused by any recent information of his wife's infidelity.

2. The purpose of Pen. Code, § 1093, providing that when defendant has confessed a prior conviction, the clerk, in reading the indictment, shall omit all that relates to such prior conviction, is not violated by asking defendant on crossexamination, if he has ever been convicted of a felony; his privilege to have such fact withheld from the jury being waived by offering himself as a witness.

3. On a trial for assault with intent to kill, the court instructed that defendant might be convicted of the lesser offense of assault with a deadly weapon, but omitted to state that simple assault was also included in the offense charged. Held no error, in the absence of a request for such instruction.

Department 1. Appeal from superior court, Sonoma county; R. F. Crawford, Judge.

Bill Arnold was convicted of assault with a deadly weapon, and from the judgment and an order denying a new trial he appeals. Affirmed.

Barham & Miller, for appellant. W. F. Fitzgerald, Atty. Gen., and Chas. H. Jackson, Dep. Atty. Gen., for the People.

VAN FLEET, J. Defendant was charged with assault with intent to murder, and was convicted of an assault with a deadly weapon. He appeals from the judgment and from an order denying him a new trial.

1. The person upon whom the assault was committed was one Clara, an Indian woman, who was at the time living with defendant as his wife. It appeared by the evidence of the prosecution that the parties were encamped near the town of Cloverdale. Clara and one Lena Pete, another Indian woman, started from camp on their horses to go to the town. Defendant objected to Clara's going, and, upon her insisting, he dragged her from her horse, struck her on the head with a rock, knocking her down, and rendering her insensible, and cut her on the scalp with a knife. Defendant desired to show in his defense that the occasion or provocation of the assault was that he had been informed that his wife was running with other men for immoral and illicit purposes, and that he supposed she was leaving the camp for some such purpose when he stopped her. The court very properly refused to admit such evidence. It was wholly immaterial, since it would not, if true, have justified the assault.

Defendant contends that: "If he had knowledge of acts of infidelity upon the part of his wife, recently communicated to him, and the further information that she was then about to go away in company with the witness Lena for the purpose of assignation, that she intended to meet for the purposes of illicit intercourse other men, and that such knowledge of her intentions formed the grounds of defendant's objections to her going, then such evidence was proper to go to the jury to show the animus with which the assault was made, and would have had a tendency to eliminate from the case the malicious and premeditated intent which the law presumes to flow from the commission of an unlawful act, even though it had not gone to the extent of justifying his interference." In other words, that it was proper for the purpose of showing an absence of malice and premeditated design, if not a defense to the assault. But defendant did not offer to show either that he had knowledge that his wife was in fact leaving the camp at the time for any such purpose, or that he had been so informed; but simply that he had been informed (he did not offer to show when) that she had been guilty of such conduct before, and, in effect, that he did not wish her to have the opportunity to do so again. While "the sight of adultery committed by his wife" may be, as suggested by Mr. Rice (3 Rice, Ev. § 475), provocation to the husband which will justify that "heat of passion" which is sufficient to reduce murder to manslaughter, the knowledge of such fact must be based upon something more tangible than mere surmise, and the knowledge must be so recent as to preclude the

idea of cooling time or premeditation. It was not claimed or pretended that defendant could show that he was acting under the influence of passion aroused by any recent Information of his wife's infidelity. His own testimony showed that he had been aware for some 18 months that she "was running with every Tom, Dick, and Harry" for such purposes, and yet had continued to live with her. Moreover, the evidence sought was in substantial effect all placed before the jury, and would seem to have produced the only effect for which it is contended such evidence was admissible, since the verdict was for a grade of offense lower than that charged, and of which malice is not an essential ingredient. Pen. Code, § 245; People v. Urias, 12 Cal. 325.

2. The information charged a prior conviction of a felony, and, defendant having at his arraignment confessed the same, no reference thereto was made by the clerk in reading the information and stating the plea to the jury. The defendant, however, took the witness stand in his own behalf, and gave his version of the circumstances of the assault. In crossexamination the prosecution was permitted, against defendant's objection, to ask him if he had not previously been convicted of a felony; and it is urged that the effect of this was to defeat the purpose of section 1093 of the Penal Code, which in prescribing the conduct of the trial provides that, when the defendant has confessed a prior conviction therein, the clerk, in reading the indictment or information, "shall omit therefrom all that relates to such previous conviction." The obvious purpose of this section was to give the defendant the benefit of withholding from the jury a knowledge of such prior conviction in all instances other than where, by the conduct of his own case, the production of such fact is rendered essential to a proper presentation of the case of the people. It was not designed thereby to change or affect the ordinary rules of evidence for the elucidation of truth, to which a defendant, like any other witness, subjects himself upon taking the witness stand. Under the rule established in this state, the defendant's character for truth, honesty, and integrity is in issue when he offers himself as a witness, and he thereupon becomes, as held in People v. Hickman, 113 Cal. 80, 86, 45 Pac. 175, 176, "subject to the same rules for testing his credibility before the jury by impeachment or otherwise as any other witness." One of the authorized methods of impeachment prescribed by the Code is "that it may be shown by the examination of the witness or the record of the judgment that he has been convicted of a felony." Code Civ. Proc. § 2051. Section 1093 did not protect defendant from the operation of this rule. He must be deemed to have waived the privllege given by that section upon becoming a witness. See People v. Chin Mook Sow, 51 Cal. 597; People v. Meyer, 75 Cal. 383, 17 Pac. 431. The cases of People v. Wheatley, 88 Cal.

117, 26 Pac. 95, People v. Sansome, 84 Cal. 449, 24 Pac. 143, and People v. Thomas, 110 Cal. 42, 42 Pac. 456, cited by appellant, all present instances where the defendant's priv ilege to have the fact of prior conviction withheld from the jury was violated without any act on his part waiving such right.

3. The court instructed the jury that they could convict defendant of the offense charged, or of the lesser offense of assault with a deadly weapon, but omitted telling them that included in the charge was also the offense of simple assault, and no request for such instruction was made. It is urged that such omission was virtually telling the jury that they could not convict of simple assault, and that this was error. It is doubtful if there was any evidence in the case to which such an instruction would have been pertinent. It is true that the defendant denied using a knife or a rock, and testified that the instrument used was a "stick," the dimensions of which were not given; but he admitted that he hit the woman on the head, and that the blow knocked her down; and he did not pretend to deny the fact shown by the prosecution that she was rendered unconscious thereby. It might well be assumed, in the absence of any. thing showing the contrary, that a stick or club which would administer such a blow was a deadly weapon, and, if it was such, the omitted matter was not pertinent. But, however that may be, if defendant deemed such instruction pertinent or material, he should have requested it. The failure to give it, in the absence of such request, has been repeatedly beld not error. People v. Franklin, 70 Cal. 641, 11 Pac. 797; People v. Scott, 93 Cal. 516, 29 Pac. 123; People v. Guidice, 73 Cal. 226, 15 Pac. 44. We discover no error in the giving or refusing of instructions. The judgment and order are affirmed.

(117 Cal. 1) (Sac. 236.) 1 May 8, 1897.)

BARNES v. GLIDE et al. (Supreme Court of California. MANDAMUS-LIMITATIONS-RUNNING OF STATUTE.

1. Code Civ. Proc. pt. 2, § 343, providing that "an action for relief, not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued," applies to a mandamus proceeding, even if section 337. 338, or 339 does not apply thereto, under section 363 of the title, "Of the Time of Commencing Actions," providing that the word "action," as used in such title, is to be construed, wherever necessary, as including a special proceeding of a civil nature, and section 1109 of the title relating to writs of mandate, etc., providing that, except as otherwise provided, the provisions of part 2 (section 307 to section 1059) are applicable to proceedings mentioned in said title.

2. Limitations begin to run against a mandamus proceeding to compel the proper officers to levy a tax to pay warrants issued by a swampland district at the time a cause of action on the warrants accrues, and not at the time demand is made on the officers to levy the tax.

Rehearing denied.

Department 2. Appeal from superior court, Yolo county; W. H. Grant, Judge.

Petition by Charles Barnes for a writ of mandate to swamp-land district No. 307, and J. C. Glide and others, trustees of such district, to compel defendants to levy a tax to pay certain warrants issued by said district, and held by plaintiff. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Albert M. Johnson and Wm. Gwynn, for appellant. Alvin J. Bruner, Devlin & Devlin, and McKune & George, for respondents. John T. Harrington, amicus curiæ.

MCFARLAND, J. The plaintiff filed a petition or complaint in the superior court, in which he asked for a writ of mandate to be directed to the defendants, swamp-land district No. 307, and J. C. Glide, Francis T. Dwyer, and Joseph L. Monica, the present trustees of said district, commanding them "to proceed to have an assessment levied upon the lands in said district sufficient to pay, and for the purpose of paying," certain warrants described in the complaint. The defendants filed a demurrer to the complaint. The demurrer was both general and special, and it was sustained by the court below, and judgment rendered for defendants. From this judgment the plaintiff appeals.

The complaint contains quite a number of counts; but they are all alike, except that a different warrant is described in each count. The first count is a sample of them all. In that count it is averred that swamp-land district No. 307 was duly organized in September, 1877, and has ever since been an existing corporation; that the other defendants, Glide, Dwyer, and Monica, are now, and for more than six months. last past have been, the duly-elected and acting trustees of said district; that on the 10th day of September, 1877, the said district, through its then board of trustees, issued to H. M. Hawley & Co. its certain warrant, numbered 23, upon the treasurer of Yolo county, in which county the district is situated, directing said treasurer to pay to said Hawley & Co., or order, "from the swamp-land fund in the treasury of said county to the credit of said district No. 307, the sum of $372.96"; that the said warrant was presented to the board of supervisors of said county, and was by them approved, and was thereafter presented to the treasurer of said county, and was by him on the 12th day of November, 1887, marked, "Not paid for want of funds," and registered; that since the issuance of said warrant there never has been in the treasury of said county, to the credit of said swamp-land district, or in the funds of said district, sufficient money with which to pay said warrant, or any interest thereof, and that there never has, during any of said time, been any money whatever in said treasury to the credit of said district, except only the sum of $380, which remained in

the treasury for 14 days, and was paid out upon another warrant; that prior to the 1st day of November, 1895, the said Hawley & Co. assigned said warrant to plaintiff, who is now the owner and holder thereof; that on the 5th day of November, 1895, the plaintiff demanded in writing of defendants that they provide for the payment of said warrant; that the defendants failed and neglected to pay said warrant, or to provide for the payment thereof, or to comply with the demand aforesaid, and no part thereof has ever been paid, but the whole thereof "is due, owing, and unpaid from the said swamp-land district No. 307 unto this plaintiff." The prayer is that the defendants be required "to proceed to have an assessment levied upon the land in said district sufficient to pay, and for the purpose of paying, each and every warrant herein before described, and all interest due thereon, and to collect all taxes thereon, and to pay all taxes and moneys so collected into the treasury of the county of Yolo," etc. There is also an averment, "upon information and belief," that the defendants have moneys in their hands belonging to said defendants, and a prayer that they pay the same into the treasury of said Yolo county; but as no point is made in the briefs as to this averment, and as it is evidently considered by the parties as unimportant, it is not necessary to consider it. The defendants, in their demur rer, set up the statute of limitations, and particularly sections 337, 338, 339, and 343 of the Code of Civil Procedure. They also pleaded by the demurrer that the complaint did not state facts sufficient to constitute a cause of action, and these two grounds of demurrer are the only ones discussed by counsel.

Counsel for respondents strenuously contend that the thing which plaintiff seeks to have defendants compelled to do is not a duty "which the law specially enjoins as a duty resulting from the office, trust, or station"; that the law does not specially enjoin the defendants to have an assessment levied upon the land in said district; and particularly that it is not their special duty to have such an assessment levied for the purpose of paying the warrants, or either of them, mentioned in the complaint. This and many other points are pressed by respondents under that part of their demurrer which asserts that the complaint does not state facts sufficient to constitute a cause of action; but we do not consider it necessary to inquire particularly into these points, because, in our opinion, the proceeding is barred by the statute of limitation. A proceeding in mandamus between two private parties to enforce a money obligation, where there is no statutory provision giving it a different character, is generally considered as a mere action at law, in which case all ordinary rules of practice, including the statute of limitations, apply. In Com. v. Dennison, 24 How. 97, the supreme court of the United States say: "It

is equally well settled that a mandamus, in modern practice, is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English crown, and was subject to regulations and rules which have long since been disused. But the right to the writ, and the power to issue it, have ceased to depend upon any prerogative power, and it is now regarded as an ordinary process, in cases to which it has application. It was so held by this court in the cases of Kendall v. U. S., 12 Pet. 615; Kendall v. Stokes, 3 How. 100." In New York, before the adoption of the Code, and when there seemed to be no provision of the statute of limitations expressly applicable to proceedings in mandamus, the court held, in People v. Supervisors, 12 Barb. 446, that a proceeding in mandamus should, by analogy, be commenced within "the time given by the statute to obtain a remedy for injuries substantially of a similar character in the ordinary way, if that could be pursued"; and in People v. French, 12 Abb. N. C. 156, the court alluded to the former case of People v. Supervisors as founding the doctrine of limitation upon analogy, but said that "whether the proceeding then under review was to be considered as an action under section 3333 of the New York Code, or a special proceeding under section 3334 of that Code, the result would be the same, because by section 414 of the Code the rules of limitation were made applicable to special proceedings as well as civil actions." Our Code has substantially the same provisions as section 414 of the New York Code. Section 1109 of the Code of Civil Procedure, which is a part of the title under which writs of mandate, certiorari, and prohibition are provided for, reads as follows: "Except as otherwise provided in this title, the provisions of part 2 [section 307 to section 1059] of this Code are applicable to and constitute the rules of practice in the proceedings mentioned in this title." And part 2, from said section 307 to said section 1059, includes the provisions of the Code upon the subject of the limitations of actions. Moreover, section 363 of the Code of Civil Procedure, which is the closing section of the title "Of the Time of Commencing Actions," reads as follows: "The word 'action,' as used in this title, is to be construed, wherever it is necessary so to do as including a special proceeding of a civil nature." Therefore it is quite clear that not only under the general authorities, but under the provisions of our Code, a proceeding like the one at bar, in mandamus, is subject to the rules which govern the limitation of actions; and if the present proceeding is not subject to section 337, section 338, or section 339, it is certainly subject to the provisions of section 343, which declares that "an action for relief, not hereinbefore provided for, must be commenced within four years after

the cause of action shall have accrued." The reason and philosophy upon which the statute of limitations is based apply here with full force. The warrant set up in the first count of the complaint was issued, presented, and payment thereon was refused, in November, 1877; and this present suit was not commenced until November, 1895, which was 18 years thereafter. The date of the latest warrant set up in the complaint is 1881,more than 14 years before the commencement of the action. The present board of trustees, who are made defendants, do not appear to have occupied that position for a longer period than 6 months prior to the commencement of the suit. The warrants sued on were issued, if at all, by other trustees, who were in office from 15 to 18 years before this proceeding was instituted. They may have been issued illegally; the act of issuing them may have been ultra vires; they may not have been issued for any labor done in the construction of the works of the district; they may have been issued without consideration and fraudulently; they may be forgeries. And it is quite evident that the present defendants, after such a lapse of time, would be in no condition to make any of the defenses above indicated, when witnesses who knew of the facts at the time may be dead, or may have allowed the recollection of them to vanish from their memories. And the evident purpose of the statute of limitations is to prevent such a condition of affairs, and to preclude parties from disturbing that repose which is intended to be final after the lapse of certain periods of time designated in the statute itself. The position cannot be successfully maintained that no action could be commenced until a demand had been made by plaintiff upon the defendants to act. Whether such demand be necessary in a case like the present, it is not necessary to determine, for the demand itself was an act within the power of the plaintiff.

In Prescott v. Gonser, 34 Iowa, 179, the court say: "That the action of mandamus cannot be maintained until there has been a refusal to perform the official duty sought to be enforced, is true; but to hold that a plaintiff who has a right to demand performance at any time may delay such demand indefinitely would enable him to defeat the object and purpose of the statute. It is certainly not the policy of the law to permit a party against whom the statute runs to defeat its operation by neglecting to do an act which devolves upon him, in order to perfect his remedy against another. If this were so, a party would have it in his own power to defeat the purpose of the statute in all cases of this character. He could neglect to claim that to which he is entitled for even fifty years unaffected by the statute of limitations, thereby rendering it a dead letter. In such a construction of the statute we cannot concur." See, also, to the same effect, Baker v. John

son Co., 33 Iowa, 151. If the facts stated in the complaint in the case at bar constitute a cause of action, they constitute a cause of action which accrued, and for which an action might have been instituted, from 14 to 18 years before the present complaint was filed. The statute of limitations is intended to embrace all causes of action not specially excepted from its operation, and there is no exception applicable to the present proceeding. Bates v. Gregory, 89 Cal. 387, 26 Pac, 891, was an application for a writ of mandate to compel the trustees of the city of Sacramento to do certain acts. The defendants therein set up the statute of limitations, and this court said: "A municipal corporation has the legal right to avail itself of the defense of the statute of limitations as fully as any other creditor.

It is a privilege personal to the debtor, and whenever, in any legal proceeding, it is invoked by the debtor, the court is compelled to recognize it as a proper defense. This defense is pleaded in the present proceeding, and, as we have before shown, is sustained by the facts, and must therefore be held sufficient." Appellant relies greatly on Freehill v. Chamberlain, 65 Cal. 603, 4 Pac. 646, but that case is not pertinent to the case at bar. That case was simply mandamus to the treasurer of the city of Sacramento to compel him to pay the interest on certain bonds. Those bonds had been issued by the city under the act of April 24, 1858 (St. 1858, p. 280), which has frequently been held by this court to corstitute an express contract between the city and the bondholders, by which the latter were prohibited from suing the city, and were to rely exclusively upon a certain special fund, distinct from the general fund and from all other funds of said city. The only remedy which the bondholders had was mandamus against the city treasurer to compel him to pay the interest on the bonds when there was money in the fund to which they could alone look under their special contract; and all that the court decided in Freehill v. Chamberlain was that no cause of action in mandamus against said treasurer had accrued until there was money in said fund, and that consequently the statute of limitations did not commence to run while there was no money in said fund with which the treasurer could pay said interest. It was not a proceeding which might have been commenced 15 years before it was instituted. The judgment is affirmed.

We concur: HENSHAW, J.; TEMPLE, J.

(24 Colo. 247)

In re INTERNAL IMPROVEMENT FUND. (Supreme Court of Colorado. April 27, 1897.) STATES-INTERNAL IMPROVEMENTS-WHAT

CONSTITUTE.

Public buildings, such as asylums, statehouses, etc., are not "internal improvements," within the Colorado enabling act (1 Mills' Ann. St. 193), providing that 5 per centum of the

proceeds of the sales of agricultural public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union, etc., shall be paid to the state for the purpose of making such internal improvements as the legislature may direct, or within the meaning of the same term as used in Rev. St. U. S. 1878, § 2378.

Advisory opinion in response to communication and interrogatories by the governor. The opinion is in response to the following communication and interrogatories from the governor, to which was attached senate bill No. 30, section 3 of which reads as follows: "Sec. 3. That for the purpose of constructing a cottage for the female patients of said asylum, there is hereby appropriated out of the internal improvement fund the sum of twenty-five thousand dollars ($25,000) which shall be the total amount to be expended in the construction of a cottage for the female patients by the commissioners of the insane asylum."

"To the Honorable the Supreme Court of the State of Colorado:

"Whereas, section 3 of article 6 of the constitution of the state of Colorado, as amended, provides that the supreme court shall give its opinion upon important questions upon solemn occasions, when required by the governor; and whereas, a certain senate bill No. 30 has been passed by both houses of the Eleventh general assembly, a copy of which is hereto attached, and has been presented to me in due course for my approval or disapproval as governor; and whereas, upon reading and examining said bill, it appears to me that a certain item sought to be appropriated by section three thereof out of the internal improvement fund' may be in violation of the terms and conditions of the grant of the United States government, as set forth in that portion of the enabling act creating said fund, the same being section 193 on page 93 of Mills' Annotated Statutes; and whereas, it is considered by me that the foregoing question is important and the occasion solemn: Now, therefore, I, Alva Adams, governor of Colorado, do hereby respectfully require you, the supreme court of the state of Colorado, to give your opinion upon the following questions: (1) Is section 3 of said act obnoxious to the terms of the granting act aforesaid? (2) Is it lawful for the general assembly of the state of Colorado to appropriate any portion of the said 'internal improvement fund' for the erection of public buildings, such as asylums, statehouses, universities, and colleges, or any other public institution of a like character? "Very respectfully, Alva Adams, "Governor of Colorado. "Done at Denver, Colorado, this 10th day of April, A. D. 1897."

James W. McCreery, T. M. Robinson, Byron L. Carr, Atty. Gen., and Calvin E. Reed, Asst. Atty. Gen., amici curiæ.